Gomez v. Campbell-Ewald Co.

A government contractor can be held liable for a violation of the Telephone Consumer Protection Act when a third-party vendor sends unsolicited text messages.

Jose Gomez received an unsolicited text message promoting the United States Navy. The message came from Mindmatics, hired by the Campbell-Ewald Company, a marketing company working for the Navy, to collect names and to send the messages. The “target” for the messages were men 18-24 years old, who had consented to receive the message. Gomez was forty years old at the time he received the message, and claims he never consented to its receipt. Gomez filed action against Campbell-Ewald for violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits companies from sending unsolicited pre-recorded messages to consumers. Gomez also brought suit as a member of a putative class. Campbell-Ewald attempted to settle with Gomez for the full amount of his claim, but Gomez let the settlement offer lapse. On appeal, the Ninth Circuit disagreed with the District Court’s grant of summary judgment in favor of Campbell-Ewald, on the theory of derivative sovereign immunity under Yearsley v. W.A. Ross Construction Co. The panel also analyzed each of the other claims made by Campbell-Ewald in the summary judgment motion. First, the panel applied the ruling in Diaz v. First Am. Home Buyers Prot. Corp., to discredit Campbell-Ewald’s argument that Gomez’s rejection of the full settlement offer yielded his individual and putative class claim moot. The panel also rejected Campbell-Ewald’s argument that the TCPA is a violation of First Amendment rights, citing that putting limits on speech is not the same as denying speech. Finally, Campbell-Ewald attempted to deny liability by arguing that vicarious liability would only apply to the Navy and Mindmatics, the third-party vendor that sent the messages. The panel rejected this argument and held that Campbell-Ewald would be included under the “any person” language of the TCPA. REVERSED and REMANDED.